Judge Robert Bork on Simultaneous Supreme Court Vacancies

This is a partial transcript from "Hannity &Colmes," September 5, 2005, that has been edited for clarity.

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SEAN HANNITY, CO-HOST: For the first time in more than 30 years there are two vacancies on the U.S. Supreme Court.

President Bush nominated Judge John Roberts this morning to replace the late William Rehnquist as chief justice of the United States.

And confirmation hearings for Judge Roberts were supposed to begin tomorrow, but late today Senate Majority Leader Bill Frist announced that they will be delayed. An announcement on the new timetable is expected tomorrow morning.

EDITOR'S NOTE: Senate confirmation hearings will begin on Monday, September 12. Watch coverage of the hearings LIVE on FOX News Channel.

But this leaves open another seat on the bench that the president has to fill. So who could it be, and who will be reshaping the court be the president's legacy?

Joining us now, former Supreme Court nominee Judge Robert Bork.

Judge Bork, welcome back. Did you know the chief justice well?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: Sure. I argued every case I ever argued before the Supreme Court before him.

HANNITY: And your thought about him?

BORK: He was very good. I enjoyed it. We didn't always agree on issues. But he was very good, and he moved the business along. And when he became chief justice, he was noted for his efficiency. He — when he kept time. If you argued up to your limit, the red light went on. He said he would interrupt you in the middle of the word "if."

HANNITY: So don't go beyond the red light. I tell that to Alan all the time. -- Watch the red light.

ALAN COLMES, CO-HOST: There's always a red light!

HANNITY: That's a good point.

Judge, the last time there were simultaneous vacancies on the court was in 1971. You, of all people, know the effect that politics can have on the confirmation process. What is your political take on what's going to happen next?

BORK: Well, I think the liberals will do everything they can to derail Roberts. The idea that have set a higher bar because he's going to be nominated for chief justice is silly.

The chief justice aspect of the job is really — sort of a CEO running the machinery of the court and some other institutions. It doesn't affect the votes on the court. He just has one vote, and there's no way he can sway the others, except by the force of his reasoning.

HANNITY: Why not Antonin Scalia? Why not Clarence Thomas as chief?

BORK: Well, I thought — Roberts has one advantage. He's very good. I don't mean to say he isn't. But he has one advantage, and that is his views aren't known. And Scalia's and Thomas's views are known, which would make it an even rougher confirmation fight, I think. That may be one of the reasons Roberts was selected, although he is eminently well qualified.

HANNITY: Is this — there is a lot of talk that this would create the idea that, all right, well now that means he's replacing Rehnquist, not Sandra Day O'Connor. And a lot of people on the left, and I do not agree with this idea — this is what elections are about — are saying, well, now that means the president needs to find that moderate justice, which I have a hard time how you moderate if you believe as an originalist in interpreting the Constitution and the rule of law.

BORK: A moderate is somebody who drifts to the left once they're on the court.

The fact is that George Bush now has a chance to make the court more legitimate by making it a court that does not legislate from the bench but instead follows the principles that are actually in the Constitution.

I hope he doesn't — I'm sure he won't back down from that. He stated his criteria. He says Scalia and Thomas are his idea of good justices. So I think the person he nominates in addition to Roberts should also be of that quality.

COLMES: Judge Bork, it's Alan Colmes. Welcome back to the show.

I always hear conservatives say liberals are going to derail him. They said that before he was asked to be chief justice, but it hasn't happened. And I'm not convinced it's going to happen this time. Mostly, with a few exceptions, Democrats have been complimentary and indicated they're probably going to pass him.

BORK: Well, I think they will pass him. I don't know if the Democrats will, but enough of them will. No, he'll be confirmed, I'm pretty sure.

COLMES: So they're not going to derail him?

BORK: Well, the people are trying, People for the American Way and NOW and NARAL and that whole crowd are out there trying to whip up opposition and to falsify his record.

COLMES: Well, conservative groups do that for liberal justices, too. But is there a higher bar now...

BORK: I didn't notice that very much, but go ahead.

COLMES: Is there a higher bar now that the job is chief justice vs. associate justice?

BORK: No, I don't think so, because it doesn't affect the substantive views that he'll bring to judging. The chief justice is really a manager of an office. Now it's very heavy-duty, but he'll do it very well. He's calm. He's poised. He's friendly. And I'm sure his colleagues will like him very much.

COLMES: You pointed out, very interestingly, about the advantage he has not knowing his views -- don't the American people have a right to know the views of a justice, if not a chief justice, given the fact these are lifetime appointments that go on for a generation, possibly? What rights do the American public have to know what a person like that is thinking?

BORK: The only right they have is to know is whether he will follow the actual Constitution. Because if they begin to support or oppose somebody on particular issues, that means the Constitution is no longer controlling. It's becomes sort of a poll taken of the public, and that will control.

That's the trouble with senators who demand to know what — how you're going to vote on every issue. That takes the control away from the court and places it in the Senate. And that's not what this system is designed to do.

COLMES: Is it fair to ask how one interprets the Constitution? For example, does it contain a right to privacy? Roe vs. Wade, which called upon that rights, is that an accurate way to interpret it? Isn't that an accurate — a good question?

BORK: Well, if I were Roberts I wouldn't answer the question about Roe against Wade. When I was up I didn't have that luxury, because I had written about Roe against Wade in all of these other cases, but he hasn't. nd if I were he I would not answer that question.

Judge Bork, it's always a pleasure. Thank you for being with us. Appreciate your time tonight. Thank you.

BORK: OK.

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